Chapter 3

THE OROVILLE & VIRGINA
CITY RAILROAD COMPANY

Page 7

But it is claimed that the existence of the corporation is
recognized by the Act requiring the county to subscribe to the stock
of the company. Admitting such to be the case, that will not
overcome the difficulty; for a corporation of this character cannot
be created by legislative recognition, the Constitution (Article IV,
Section 31) prohibiting the creation of corporations, except for
municipal purposes, otherwise than by general laws.

The second paragraph denies that the company demanded that the Board
subscribe to the capital stock of the company. This forms a material
issue. The subscription was to be made upon the books of the
company, and entered in the records of the Board. It was the duty of
the company to tender their books and request the subscription, and
not of the Board to request the company to produce their books for
that purpose. "It is an imperative rule of the law of mandamus that,
previously to the making of the application to the Court for the
writ to command the performance of a particular act, an express and
distinct demand or request to perform it must have been made by the
prosecutor to the defendant, who must have refused to comply with
such demand, either in direct terms or by conduct from which a
refusal can be conclusively implied, it being due to the defendant
to have the option of either doing or refusing to do that which is
required of him, before an application shall be made to the Court
for the purpose of compelling him." (Tapping on Mand. 282; see,
also, People v. Romero, 18 Cal. 90; Crandall v. Amador County, 20
Cal. 72.) This rule is applicable in cases where the petitioner or
relator has a private interest in or claims the immediate benefit of
the act or proceeding required to be done or taken; but when the act
or proceeding amounts to a mere public duty, without any immediate
benefit to the petitioner or relator, the rule may be otherwise.

The fifth paragraph, which avers that the passage of the Act recited
in the petition was procured by fraud, is objectionable, first,
because it is not well pleaded, as the acts constituting the fraud
are not averred. The motion admits, in effect, only those facts that
are well pleaded. A general allegation of fraud in a pleading will
not be regarded. Second, an Act of the Legislature is not subject to
attack on that ground; and it is sufficient on this point to refer
to Sherman v. Story, 30 Cal. 266.

The objection to the matter alleged in the sixth paragraph--the
pendency of proceedings in quo warranto against the persons named as
claiming to compose said company--is well taken. It is no defense to
this action. If the defendants conceive themselves entitled to have
the proceedings in this case stayed, they can make the application
in the proper manner. The grounds of the motion have no appropriate
place in the answer.

Motion granted as to the fifth and sixth paragraphs, and denied as
to the other paragraphs in the answer.

It was reported in the Sacramento Daily Union on January 26,1869
that the Oroville and Virginia City had passed into the hands of
General Rosecrans and Ashbury Harpending, who would prosecute the
completion of their undertaking with all possible rapidity and
skill. It was also understood that Bensley, President of the
Oroville and Virginia City Railroad, had started east a few days
later to perfect the means for the early completion of the road.

Two months later, on March 21, 1869, Keddie, Rosecrans and Haymond
traveled east on business where General Rosecrans tried to induce
the Union Pacific to take over the Oroville & Virginia City project
as its California connection and thus by-pass the Central Pacific
with its already critical snow problems. His old comrade in arms,
General G. M. Dodge, actually left his Union Pacific construction
camp and came out to consider the offer.

He liked what he saw but the Central Pacific end of track was miles
into the Nevada desert by then and, although the Union Pacific,
which was building west at the same time, was authorized by Congress
to build to the western boundary of Nevada by July 1, 1874 it had to
stop wherever it met the Central Pacific. The Union Pacific was
laying track at the rate of two miles a day and claimed that they
would be at the Sierras during 1870 and intended to continue into
California on their own responsibility and planned to adopt either
the Beckwourth Pass or Placerville route.

Construction of the Oroville & Virginia City began near Oroville on
March 27, 1869, with a crowd of several hundred people gathered at
the edge of Oroville to see the first grade stake being driven by
George Crossette, editor of the Butte Record newspaper. A gang of
thirty Chinese immigrants was then put to work grading between
Thompson Flat and Morris Ravine.

It took the Central Pacific five and a half years to build across
the Sierras, opening their line to Reno on June 19, 1868, but only
ten months to cross Nevada to Promontory, Utah. This fast pace
altered the Union Pacific’s plans to build to California with the
two companies making an agreement on the Promontory, Utah connection
where they were joined on May 10,1869.

Assembly Bill No. 323 was introduced into the California Legislature
on February 19, 1870 as follows;

An Act to repeal an Act entitled an Act authorizing the Board of
Supervisors of Plumas County to take and subscribe to the capital
stock of the Oroville and Virginia City Railroad Company, and to
provide for the payment thereof. [Approved February 26, 1870.]

The People of the State of California, represented in Senate and
Assembly, do enact as follows:

SECTION 1. An Act entitled an Act authorizing the Board of
Supervisors of Plumas County to take and subscribe to the capital
stock of the Oroville and Virginia City Railroad Company, and to
provide for the payment thereof, approved March thirtieth, one
thousand eight hundred and sixty-eight, is hereby repealed.

SEC. 2. This Act shall be in force from and after its passage.

Mr. Perkins — I move to suspend the rules and consider the bill now.

Mr. Roberts— I would suggest that the bill be first referred, to
ascertain whether the bill interferes with the vested rights of any
parties.

Mr. Hager — It has just been whispered in my ear that the bill does
interfere with the rights of private parties.

Mr. Perkins — The delegation are united on the bill. Not three
minutes since the Senator from Plumas came to me and requested that
I should ask that the passage of the bill be expedited. If it
interferes with private rights, the Courts will afford a remedy.

Mr. Fowler— l move now, Mr. President, that the Sergeant-at-Arms be
instructed to clear out the lobbyists from the Senate, so that they
shall not whisper in Senators ears, which drew some laughter.

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